ISMILE SHEIK Vs. NAKUL CHOUHAN

JUDGEMENT

(1.) This appeal under Sec. 11 of the Code Criminal Procedure has been filed the appellant/complainant Ismile Sheik s/o Noorvaksh being aggrieved by the judgment dated 31.12.2007 in Criminal Case No. 402 of 2007 passed by Judicial Magistrate Class-I, Neemuch acquitting the respondent Nakul Chouhan for offence under Sec. 11 of the Negotiable Instruments Act.

(2.) Brief facts necessary for elucidation are that the respondent Nakul Chouhan had taken a loan of Rs. 5,000.00 on 10.5.2006 from the appellant and in return he had tendered a cheque No. 752562 for Rs. 5,000.00 drawn on Oriental Bank of Commerce and on being presented in the Bank on 29.1.2007 it was returned by the bank with the tip on the dishonour memo that there was insufficiency of funds. The complainant served notice by registered A.D. as well as U.P.C. which was allegedly served on 10.2.2007. and due to non-payment within the statutory limit of 15 days, the complainant was constrained to file written complaint. The Trial Court considered the matter. On considering the receipts, the notice with regard to the UPC receipt and the returned registered A.D. envelope, the accused was duly charged and committed to his trial. He adjured his guilt and stated that he was falsely implicated in the matter. The statements under Sec. 11 of the Code Criminal Procedure were also recorded. He however did not examine anybody or present any documentary evidence in his defence. The Trial Court on considering the evidence however acquitted the accused the on the grounds of non-service of the statutory notice and hence the present appeal by the complainant.

(3.) Counsel for the appellant has vehemently submitted that the learned Judge of the Trial Court had erred in acquitting the accused primarily because there was ample evidence on record to establish the offence. He drew the attention of this Court to the dishonour memo sent by the bank on 10.2.2007 and the registered A.D. notice is Ex.P/3. The registered A.D. i.e., the envelope was sent by the complainant and it returned with the comment "refused" which is Ex.P/6. The appellant had taken sufficient precaution and also issued the notice UPC and the receipt Ex.P/5 is available on record and the registered AD is Ex.P/4. The registered A.D. returned envelope contained the tip "refused" by the drawer. However, counsel contended that the notice Ex.P/3 was never received by the accused and the address on the registered envelope ought to have been Q-2, Alkolite Colony and Ex.P/6 the undelivered envelope also contained the same address. Counsel basically urged the fact that there were no objections raised by the accused regarding the service by registered AD before the Trial Court. Counsel for the appellant complainant categorically stated that the letter 'Q' was clearly indicated on the address and was wrongly been construed to be an "A' by the Trial Court and the Trial Court had mistakenly held that since it was not the correct address of the accused and the notice could not have been deemed to be served on the accused. In impugned para-13 of the Trial Court judgment the Court has held that the complainant had admitted in Court that he knew the address of the accused and despite having knowledge that the accused lived in Q-2, Alkolite Colony, Neemuch, the envelope was wrongly addressed as A-2, Alkolite Colony and since the wife has denied receiving the notice; counsel stated that on her mere say so the Trial Court has granted benefit of doubt to the respondent accused. Moreover counsel insisted that there was no evidence on record regarding the fact that the complainant was carrying on the business of money lending and merely because there were a couple of cases of the similar nature filed by the complainant the Trial Court had drawn adverse inference against the complainant that he carried on the business of money lending. Similarly counsel urged the fact that the Trial Court had wrongly drawn inference that there was a legally recoverable debt. Whereas the actual burden of rebutting the allegations of the complainant were with the accused and he had not satisfactorily explained the same despite which the Trial Court had acquitted the accused. Counsel vehemently urged the fact that once the complainant was able to establish that the cheque had been signed by the accused and tendered to him the burden was entirely on the accused to disprove the transaction which has not done successfully and hence counsel stated that the judgment of the Trial Court acquitting the accused be set aside. Similarly counsel vehemently stressed the fact that although there were provisions of compounding under the Negotiable Instruments Act the compromise, could not be forced and it was consistent stand of the appellant complainant that he did not wish to enter into the compromise since the accused had committed the offence and was liable to be convicted. Counsel for the appellant vehemently urged the fact that service of notice had been effected legally and validly. He relied on M/s. Indo Automobiles Vs. M/s. Jai Durga Enterprises & Ors., 2008 (2) NIJ 446 (SC) : [2008 (2) DCR 499] whereby the Apex Court considering the question of notice and its validly under Sections 138, 138-B and 142 of the Negotiable Instruments Act, directed that Sec. 11-B of the Negotiable Instruments Act invites a liberal view and that statutory notice under Sections 138 and 142 of Neotiable Instruments Act sent to correct address of the' drawer but returned with the endorsement must be presumed to be served to the drawer. Counsel stated that the presumptions under Sec. 11 were available to the complainant. Counsel stated that the Trial Court had erred in holding that the notices were not properly served. Counsel also relied on C.C. Alavi Haji Vs. Palapetty Muhammed & Anr., 2007 (2) NIJ 1 (SC) = [AIR 2007 SC (Supp) 1705] to state that the Apex Court had held that the pre-requirement of giving notice to drawer of cheque is mandatory and object of such requirement is to avoid unnecessary hardship to an honest drawer and the Apex Court had held that when a notice is sent by registered post and is returned with a postal endorsement 'refused' or 'not available in the house' or 'house locked' or 'shop closed' or 'addressee not in station', due service has to be presumed. Counsel prayed for setting aside the order of the acquittal and passing proper order of conviction and imposing of sentence.